The Reproductive Health Act will remove barriers for women seeking to get abortions in New York. But some wish it could have gone further.
January 19, 2019
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In the late spring of 2016, Erika Christensen was thirty-one weeks pregnant, and found out that the baby she was carrying would be unable to survive outside the womb. Her doctor told her that he was “incompatible with life.” Christensen and her husband wanted a child desperately—they called him Spartacus, because of how hard he seemed to be fighting—but she decided, immediately, to terminate the pregnancy: if the child was born, he would suffer, and would not live long; she wanted to minimize his suffering to whatever extent she could.
Christensen lived in New York, a state where, since 2014, an estimated twenty-five to twenty-seven per cent of pregnancies end in abortion. Abortion was legalized in New York in 1970, three years before the Supreme Court decided Roe v. Wade. Abortion was a crime in most other states; in New York, it became a crime with major exceptions. It is still regulated in the criminal code, and, Christensen learned, it is a crime in New York if an abortion is performed after a woman is twenty-four weeks pregnant, unless the mother’s life is in immediate jeopardy. Even though the baby in her womb would not be able to live outside of it, she would have to go elsewhere to have an abortion.
Politicians had been attempting for nearly a decade to pass a law called the Reproductive Health Act, which would remove abortion from New York’s criminal code and codify the protections of Roe v. Wade, which affirms a woman’s right to an abortion, with limits, in state law. The R.H.A. had been approved multiple times by the Democrat-controlled state assembly, but it had never passed the state senate, which was controlled by Republicans.
Christensen and her medical team made arrangements for her to travel to Colorado, where abortion is essentially regulated like any other medical procedure. With help from her mother, she scrounged up more than ten thousand dollars to pay for the procedure and the trip. In Boulder, a doctor named Warren Hern administered an injection that stopped her baby’s heart but prevented her from bleeding and going into labor. Afterward, while waiting for her flight, she could not help feeling as if what she’d done was shameful and illegal. She flew back to New York and had a physically excruciating stillbirth at a hospital.
A week and a half later, she e-mailed me. I was working at the Web site Jezebel, which often publishes stories about abortion law. Christensen wanted to describe what had happened to her. When we spoke on the phone, her milk was still coming in. Her baseline experience of pregnancy had been punishing to begin with, and New York law had made it much worse.
When New York first legalized abortion, in 1970, it was one of only four states where the practice was legal. Of the four, New York’s law was the most liberal, as it had no residency requirement. Between July of 1970 and January of 1973, roughly three hundred and fifty thousand out-of-state abortion patients came to New York; in the first two years after the state law passed, sixty per cent of women who had abortions in New York came from out of state. “New York used to be an oasis,” Katie Watson told me recently. Watson is a professor and bioethicist at Northwestern, a former lawyer for the A.C.L.U. of Illinois, and the author of “Scarlet A: The Ethics, Law, and Politics of Ordinary Abortion.” “It changed things nationally,” she said, of New York State. “And then it just never updated its statute.”
The vast majority of abortions take place in the first trimester. Fewer than ten per cent of abortions occur at fourteen weeks or later, and, according to the Guttmacher Institute, only slightly more than one per cent of abortions are performed at twenty-one weeks or later. Given how rare late-term abortion is, few elected officials are willing to risk the political costs of making it a cause. Late-term abortion makes many people deeply uncomfortable: at that point in a pregnancy, we are no longer talking about a lime-size fetus that hardly resembles a person.
Doctors who perform late-term abortions have wrestled with the profound difficulties of fetal personhood; they have arguably done so to a greater extent than anyone else. Several years ago, I interviewed Dr. Susan Robinson, a now-retired late-term-abortion provider in New Mexico who appeared in the documentary “After Tiller,” about the only four doctors in the U.S. who, at the time the film was made, openly performed late-term abortions. (Dr. George Tiller, who previously had been part of that group, was murdered by an anti-abortion activist, in 2009.) Robinson told me that, in her practice, she used whatever terms her patients used. “If she refers to it as her baby, I’ll refer to it as her baby,” she said. “If she’s named the baby, I’ll use the baby’s name, too.” She would ask patients, particularly those who were there because of fetal anomalies, if they wanted to hold their baby, and if they wanted footprints. She would cry with them and pray with them. “I mean, imagine being six months pregnant and finding out your baby’s missing half its brain, and you’ve got this nursery you’ve painted at home, you’re so ready—I don’t want them to go home from the procedure with absolutely nothing to remember and honor the baby and its birth,” Robinson said.
I was in my mid-twenties when I saw “After Tiller,” and it was the first time I’d really thought about late-term abortion. I was struck by Robinson’s aura of sorrowful compassion. She spent every day with an ethical question that many people abhor. I asked her how she drew her own lines—if she ever refused to perform an abortion when a woman’s fetus was healthy. The calculus was hard, she said. Sometimes the compelling factor was that the patient was eleven years old. But what if the patient were fifteen, or sixteen? “What is the ethical difference between doing an abortion at twenty-nine and thirty-two weeks?” she said she would ask herself, weighing each situation. She’d had a patient from France, she told me, who came to her at thirty-five weeks, and she had turned that woman down. “It wouldn’t be safe,” she said.
Since that interview, I’ve come to think that understanding late-term abortion is a key to understanding abortion and reproduction generally. For people who believe that abortion is a medical procedure that a woman chooses to have, or not to have, in consultation with her doctor, why would we restrict abortion in our legal codes at all? The decision to restrict abortion in the legal code is based on the idea that there are people who want to kill babies, and the law exists to prevent killing. The conviction that we should instead regulate abortion medically is rooted in the proposition that late-term abortions happen not because women and doctors want to kill babies but because circumstances conspire to make late-term abortions necessary, and that the women who are in these situations, and their doctors, are the people best suited to decide when those circumstances have arrived.
Katrina Kimport, a research sociologist and associate professor in the department of obstetrics, gynecology, and reproductive sciences at the University of California–San Francisco, has, over the past couple of years, been conducting the most comprehensive research on late-term abortion to date. People have certain assumptions about late-term abortion, she told me. They imagine a woman spontaneously getting cold feet in her third trimester, or an indecisive dawdler who decides, on a whim, at twenty-seven weeks, that she’s simply done. “But, in reality,” Kimport told me, “these are people who were planning to continue the pregnancy and obtained a piece of vital information that made that change. Or they’re people who just did not know that they were pregnant—people with other existing physical conditions, or people without typical symptoms—who then knew they didn’t want to continue it, and then a series of obstacles pushed them over the line.”
For Kimport and other advocates for abortion access, a woman’s ability to decide if and when she becomes a mother is dependent not just on abortion rights but on a continuum of reproductive health access. Restrictions on contraception—high co-pays, insurance hoops, a lack of local clinics that provide birth control—produce more unwanted pregnancies, and thus increase the number of abortions. Restrictions on abortion providers, including mandatory waiting periods, so-called “TRAP laws,” and fetal-pain laws, are intended to cause women to give up on getting abortions, but, in many cases, they simply insure that abortions will be performed later than women want them to be performed.
In the study that Kimport conducted with Diana Greene Foster, her colleague at U.C.S.F., women who sought late-term abortions were twelve weeks pregnant, on average, when they discovered the pregnancy; women who sought first-trimester abortions were five weeks along, on average. Odile Schalit, the director at the Brigid Alliance, a new nonprofit that helps women travel to and from New York in order to obtain abortions, told me that the majority of the women the Brigid Alliance had served so far were New Yorkers who needed to leave the state for late-term abortions. “We expect people to know immediately when they’re pregnant, and to know exactly how to handle it,” Schalit said. “We don’t take into account the possibility of ambivalence, that they’re minors, or that they have to figure out how to take off work and get childcare, or that they might be in a coercive, unsupportive, or abusive relationship, or that they might not have the financial or logistical or bodily autonomy to access real choice at all.”
After speaking with Christensen in 2016, I transcribed and edited our conversation and posted it on Jezebel. To my surprise, and to Christensen’s, more than a million people read the piece within the week. Dozens of women wrote to me, telling me about their own late-term abortions; I forwarded their e-mails to Christensen, who had used a pseudonym for the interview. A social worker at Mount Sinai, the hospital where she’d delivered, also passed along e-mails for her from women who’d needed to terminate a pregnancy in the third trimester.
Recently, I asked Christensen about her decision to speak with me, and about everything that’s happened to her since. “I called the clinic before I talked to you,” she said, “and I asked if there was anything they’d like me not to say. And then Dr. Hern grabbed the phone, and he told me, with all this urgency, ‘Erika, you don’t need to ask permission from anyone. It’s your story.’ ” In the subsequent correspondence with the women who e-mailed her—she called them her “sad pen pals”—she repeated his counsel: they didn’t need to rationalize their decisions to her or to anyone. She started to consider becoming a pro-choice activist, under her real name. “Any fear I had about being attacked, being called a murderer, was trumped by not wanting people to think I was ashamed.”
A few months after the piece was published, Katharine Bodde, a senior policy counsel at the New York Civil Liberties Union, asked me if she could contact the woman in the interview. She got in touch with Christensen and told her about the Reproductive Health Act. In January, 2017, Christensen did her first public event in support of the R.H.A. A few weeks later, she and her husband, Garin Marschall, went to Albany to talk to legislators. She had recently found out that she was pregnant again. “They put a face on the issue,” Donna Lieberman, the executive director of the N.Y.C.L.U., told me. “It changes the game when lawmakers are speaking to people who have been impacted by the law.”
Christensen and Marschall had moved to Baltimore, but they trekked to Albany eight times during New York’s 2017–18 legislative session to lobby for the bill, sometimes telling their story a dozen times in a day. In April, 2017, Christensen gave birth to a cherubic baby girl named Pepper. One month later, Marschall built the Web site RHAVote.com. In early 2018, the family went on a tour of upstate cities to talk to people at events for congressional and state senate candidates. In the midterms, the Democrats picked up eight state senate seats, unseated five incumbents, and won a 40–23 majority in the chamber. Most of the newly elected Democrats had done an event in support of the R.H.A.
Soon after the midterms, Governor Andrew Cuomo issued a statement about the legislative priorities for his third term. With the appointment of Brett Kavanaugh to the Supreme Court, the “federal assault on women’s reproductive rights” had extended to a “Supreme Court that threatens to roll back Roe v. Wade,” the statement read. Cuomo insisted that both the R.H.A. and the Comprehensive Contraception Coverage Act should be passed during the first thirty days of the new term.
The R.H.A. was originally written to garner bipartisan support, so that it could pass a conservative-controlled senate. It legalized late-term abortions, like Christensen’s, that involve the viability of a fetus. But, with a strong Democratic majority, there was a new question to consider. Did the political will exist to go further than Roe, and to affirm a woman’s right to an abortion with no legal restrictions?
“I’m not sure that people—and specifically I mean pro-choice people who believe in limits, which is a lot of people—understand the full complexity of the issue,” Christensen told me. The facts of her own case, she said, lent themselves to sympathy, even among religious conservatives: she was a middle-class white woman who wanted to be a mother. But she didn’t see her abortion as a tragedy. She felt lucky that she was able to get it. “And the same goes for cases that the R.H.A. doesn’t cover, cases that don’t seem as sympathetic—the woman from a rural area who didn’t find out she was pregnant until seventeen weeks, who has three kids already and no travel support. Do we leave those women out? And, if we do leave them out, do we at least understand what we’re doing?” Christensen said that, because of her year of intense hormonal fluctuations, she hadn’t known that she was pregnant with Pepper until she was sixteen weeks along.
“The R.H.A. is a huge, enormously significant, long-awaited correction,” she said. “If it passes exactly as is, it would be a huge step in the right direction. But, in a room full of people who trust women, I don’t know why we would only trust them in specific circumstances. And I’m afraid that, if the R.H.A. passes, no one will be ready to talk about abortion in New York again until we’re dead. But we’re certainly going to try.”
A law that governs abortion by examining a woman’s reasons for having one carries an implicit suggestion that there are objectively correct choices in pregnancy, choices that can be ascertained and judged by the body politic. But a woman who receives dire news about her fetus might do any number of things. She might choose to enter perinatal hospice, for instance, a model of care for parents who continue pregnancies when the baby’s life is expected to be brief. A woman whose pregnancy puts her in serious and immediate danger—from her own body, from her partner—might choose to continue her pregnancy and risk her own life. “What if your doctor says that the baby will live ten days?” Kimport told me. “What if there’s a five-per-cent chance that it will live to five years? How do you make sense of that? How do you codify this decision-making in a law that is supposed to apply to everyone?”
“It becomes very complicated when you say that the law decides whether a reason for abortion is valid or invalid,” Kimport went on. “But when you let patients decide about abortion it’s much, much simpler in the end.”
Soon after the midterms in November, R.H.A. advocates—representatives from the National Institute for Reproductive Health, the N.Y.C.L.U., and other organizations—met with the bill’s sponsors, the state assemblywoman Deborah Glick and the state senator Liz Krueger. The R.H.A. was nearly certain to pass, and yet the situation was delicate. The Democratic majority had made new possibilities visible: Oregon, for example, affirms abortion as a constitutional right and has no legislative restrictions on the procedure whatsoever. But to introduce either of those options might threaten the Democratic majority that made them possible in the first place. The R.H.A. still has vocal opponents. The Catholic Bishops of New York State recently denounced it; anti-abortion advocates have argued that the R.H.A. removes the state’s ability to hold domestic abusers of pregnant women fully accountable, and that the maternal-health exception effectively permits late-term abortion “on demand” already. Republican opposition to the bill had been subdued over the past year but was almost certain to flare to life if it were significantly changed.
In the end, the bill’s language was expanded—a memo at the top of the bill recognizes “a woman’s fundamental right to access safe, legal abortion”—but its substance remained largely the same. On January 17th, Glick and Krueger reintroduced the bill. “After years of fighting for the passage of this essential protection for women, our moment has finally arrived,” Glick said. Senate Democrats voiced their intention of passing it by January 22nd, the anniversary of Roe v. Wade. At a recent event at Barnard College, Cuomo, standing onstage with Hillary Clinton, reaffirmed his commitment to the R.H.A, and pledged that he would not pass a budget until the R.H.A. and C.C.A. were both passed.“The Republican Senate said, ‘You don’t need a state law codifying Roe v. Wade,’ ” he said. “ ‘No administration would ever roll back Roe v. Wade.’ ” Cuomo called on the legislature to pass a constitutional amendment—which must pass in two separate legislative sessions and then be approved by voters—to affirm reproductive rights in the state constitution. This will likely be the next big push for advocates of the R.H.A.
“We have to understand abortion as an equal-rights issue,” Watson, the Northwestern professor, told me. “Only women can have the consequences of an unwanted pregnancy after sex.” She was interested, she said, in “moving from the politics of sympathy to the politics of respect. The politics of sympathy holds that a woman gets to have an abortion because it’s justified. The politics of respect would say that the pregnant woman determines the moral status of her fetus or embryo, and weighs that assessment against her own reasoning.” Really, she added, her preference was to take the law out of the picture. “Why is later abortion not just a matter of what doctors would or wouldn’t do?”
While I was writing this piece, Christensen sent me an e-mail. She included a video of Pepper, who is nineteen months old now, in rainbow socks, playing with her mother’s dogs. “As other states grow more and more restrictive, we’re going to have more and more people coming to New York,” she wrote. “Do we want them to scramble over the state line and feel like they’re begging for help? Or do we want them to see that there’s no shame here, that they’re supported in their decisions?” After her abortion, she said, and in everything that followed, she had realized that she was good at talking to people about difficult things. “And we need to have those harder conversations,” she added. “We need to ask people to work through and maybe live with their discomfort with this issue. We need people to understand that they may have to exchange some of their comfort in order to afford women real dignity, real trust.”
